Ethics Corner Article

Dear Ethics Committee:

I have a pre-planned and scheduled medical procedure that will require an extended hospital and rehabilitation stay to recuperate. I will have to be away from my office and unavailable to my clients for a period of time. What do I need to think about before I leave to ensure that I am meeting my ethical duties to my clients while I am temporarily away?

Significant medical procedures may cause extended absences from your practice that represent temporary disabilities. Luckily, pre-planned procedures allow you to take necessary ethical steps and precautions to guarantee that your files, clients, and obligations are properly protected, monitored, and managed in your absence. Each lawyer and firm situation is different. Therefore, each will require a unique approach to of these steps, particularly in the case of solo practitioners. See, e.g., N.H. Bar Association Ethics Committee, Advisory Op. #2020-21/03, “Dealing with a Deceased or Incapacitated Sole Practitioner’s Practice” (2020).  To address your question, you must have a plan that addresses and encompasses the following ethical rules and obligations:

Competency (Rule 1.1)

Attorneys must have the mental and physical ability to competently represent clients following the end of the temporary disability. Carefully review the medical procedure with your doctor to discuss any lingering mental, judgment, or physical ramifications from the procedure that may affect your ability to represent your clients after you return to practice. If needed, have a plan with your health care providers and colleagues to re-evaluate and reassess your capabilities periodically following your return and be prepared to tailor your caseload as necessary. Consider whether or not you may need to work with another attorney for a period of time to assure competent representation in accordance with Rule 1.1(c)(4). Doing too much, too fast could cause irreversible harm to your health, your practice, and your clients.

Communications (Rule 1.4)

Attorneys must establish and maintain clear communications with their clients, colleagues, opposing counsel, and the courts. Make your clients aware of your anticipated absence ahead of time, which may include editing email signatures to provide advance notice of the attorney’s absence weeks prior to the scheduled event and also speaking with your clients to alert them about how their matters are going to be handled during your time away. For solo attorneys and small firms, websites and Google hours of operation can also be adjusted to show the office closed for the anticipated period of time. Establish alternative contact arrangements, either through staff or another attorney, so that messages are received and appropriately relayed and inform clients of how they will be able to get their questions answered in case of a more urgent matter. Make sure you set “out of office” messages on your phone and email account to provide that contact information. Make sure a staff member is collecting the mail or it is being forwarded to the person who is supervising your cases in your absence. Email, mail, and court dockets all need to be checked for Court Notices, motions, and other more time-sensitive matters while the attorney is away.

Safekeeping Property (1.15)

Attorneys must safeguard their property and the property of any clients that may be in their possession. Solo practitioners may need to make arrangements for a staff member or another individual to periodically drive-by the office to see if there are any breaches that have compromised the security of the office, whether or not those have been caused by nefarious activity or falling tree limbs. Attorneys should also take care to secure their IOLTA accounts and checks if they are going to be holding any client money during this time. Depending on the length of time away from the office, the attorney may need to work with a trusted attorney or individual to address any return of retainers or other IOLTA matters that could occur while they are away.

Litigation (Rule 3.2)

Attorneys representing clients in active litigation must alert opposing counsel and the courts to their anticipated absence. Take appropriate efforts to reschedule court hearings and appearances as necessary, or coordinate coverage of those hearings with another attorney. Arrange for another attorney to provide representation coverage for emergent client and case issues that may arise while you are away. The attorney will also need to make sure that an attorney is reviewing email and mail looking for any motions or pleadings that may be filed during the absence so that deadlines are not missed.

Advertisements (Rule 7.1)

Attorneys must be truthful in their advertising. Ensure that your website and active advertisements reflect your alternative contact arrangements such that prospective clients and other members of the public may be timely informed of your absence so as not to cause confusion or misunderstanding about your availability.

Temporary absences from practice may be unavoidable in order to take care of your health. While there is always a lot to think about and plan in all areas of your life prior to a medical procedure, you must always act in the best interests of your clients and in accordance with your ethical obligations under the Rules of Professional Conduct.

This Ethics Corner Article was submitted for publication review to the NHBA Board of Governors at its March 21, 2024, Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison at: